On motion to dismiss indictment.
Yancey, J.c.c. (temporarily assigned).
Defendant was indicted by the Essex County grand jury and charged with the crime of murder.
At about 1:30 A.M., October 29, 1963, defendant entered the Green Village Tavern in Newark, New Jersey. Tied around his head was a light gray handkerchief which concealed the lower part of his face. Upon entering the tavern he immediately fired a shot into the ceiling and ordered the bartender and four other persons to move to the end of the bar. Defendant then commanded these persons to place their wallets on the bar, and they complied. He then went to the back of the bar and opened the cash register and took approximately $90. After so doing, defendant picked up the wallets and ordered the victims to walk toward the front door of the tavern. As they were doing this, Mrs. Julia Yuhas toppled over and fell to the floor. Defendant, on seeing this, ran out of the front door of the tavern and disappeared.
Minutes later Mrs. Yuhas was administered first aid by the Newark Emergency Squad and was subsequently taken to Newark City Hospital. She was pronounced dead at 2:05 A.M. by Dr. Evke of the hospital staff. An autopsy performed by the Chief Medical Examiner, Dr. Edwin H. Albano, disclosed, in the doctor's opinion, that Mrs. Yuhas' death was "due to fright during hold-up in tavern: cardiac arrest; occlusive arteriosclerotic coronary artery disease."
Defendant was subsequently apprehended and, as stated, indicted for murder. The indictment was returned on the theory that decedent met her death as a result of defendant's actions during the course of a robbery he was committing. The State, under this indictment, contends that since death resulted during the commission of a high misdemeanor (robbery), a charge of first degree murder is appropriate under the "felony murder" theory. Defendant disagrees and has made this timely pretrial motion pursuant to R.R. 3:5-5 to dismiss the indictment.
Defendant contends that his acts do not substantiate the State's charge of felony murder. He grounds this contention,
and relies heavily, on the fact that there was no direct physical contact between himself and decedent, and therefore his acts were not those which would render him responsible for Mrs. Yuhas' death.
The court, on this motion, is called upon to consider the sufficiency of the indictment. N.J.S. 2A:113-2, the statute upon which the indictment was returned, declares:
"Murder which is perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which is committed in perpetrating or attempting to perpetrate arson, burglary, kidnapping, rape, robbery or sodomy, is murder in the first degree. * * *"
The statute is a codification of the so-called "felony-murder rule" which was developed in England under the common law. The rule places upon a man committing a felony, or attempting to commit a felony, the hazard of being guilty of murder if he creates any substantial human risk which would actually result in the loss of life; and it does this without excluding those homicides which occur so unexpectedly that no reasonable man would have considered any risk of this nature to be involved. The English jurists reasoned that certain felonies have been attended so frequently by death or great bodily harm, even when not intended or contemplated by the particular wrongdoer, that they must be classified as dangerous. Common experience points to the presence of a substantial human risk from the perpetration of such wrongful acts as arson, burglary, rape and robbery. The intent to avoid all personal harm, formed in the mind of the transgressor at the time he embarks upon such a felony, is no reasonable safeguard that death will not result from his illegal actions.
This common law concept has been carried over into our laws and is so expressed by the Legislature in the cited statute. State v. Smith, 32 N.J. 501 (1960), certiorari denied 364 ...